Conservatorship appointment; MCL 700.5106 & MCL 700.5409; Guardian ad litem (GAL) report access; MCR 5.121(D)(2)(a); Court-rule interpretation; Unpreserved issue review; Tolas Oil & Gas Exploration Co v Bach Servs & Mfg, LLC

The court held that the probate court erred by relying on a confidential GAL report without affording petitioner, the minors’ father and a competing conservator applicant, an opportunity to examine and controvert it as required by MCR 5.121(D)(2)(a). Petitioner sought appointment as conservator for his three minor children after each child inherited $100,000 from their great-grandfather’s estate. But the GAL recommended appointment of an independent conservator and relied in part on a confidential exhibit that was not disclosed to petitioner. The probate court denied petitioner’s request, reasoning that his testimony showed he wanted to control when the children received the money after age 18 and intended to “hold the purse-strings” as a means of controlling them. On appeal, the court held that review of the unpreserved issue was warranted because declining review would create “manifest injustice” where the probate court relied on “undisclosed evidence to resolve a contested issue affecting statutory priority and fiduciary appointment[.]” The court next held that the rule’s language is mandatory because “‘[a]ny interested person shall be afforded an opportunity to examine and controvert reports received into evidence,’” and this “language imposes an affirmative duty on the court to ensure that the opportunity is provided once a report has been received into evidence[.]” The court further held that the rule contains no exception for confidential reports, explaining that if the Supreme Court had intended such an exception, “it could have done so expressly.” Because petitioner was never given that opportunity, he was entitled to a new hearing and “must be afforded the opportunity to examine any GAL report received into evidence.” Reversed and remanded.